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Raphael Vassallo
Opponents of the controversial ACTA legislation were in full celebration mode this week, following what many believe was a definitive rejection of the law by the European Parliament.

The EP rejected the controversial Anti-Counterfeiting Trade Agreement (ACTA) on Thursday, in a 478 to 39 vote with 165 abstentions: after the European People’s Party (EPP) unsuccessfully attempted to delay the decision.

The EPP’s proposed postponement was rejected in a 420 to 255 vote, with nine abstentions.

But while activists loudly proclaimed the resulting ‘death’ of ACTA, newswires were considerably more prudent in reporting the event. ACTA, we were told, was not quite ‘dead’, but rather on ‘life support’. For while the EP has now rejected the law in its present form, the European Commission is still awaiting a ‘verdict’ from the European Court of Justice regarding the legality of the law itself – suggesting that the final act in the ACTA saga may not be over yet.

Earlier this year the Commission had referred ACTA to the ECJ, with a view to determining ACTA was incompatible “in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property”.

EC representative to Malta, Martin Bugelli, confirmed this week that the Commission is still awaiting the results of the Court’s inquiry: “Citizens and the Parliament have raised concerns over the potential impact of intellectual property rights on other fundamental rights,” Bugelli told MaltaToday. “This is why the Commission will continue to wait for the opinion of the European Court of Justice and study it closely. The Commission would also discuss the outcome of the Court referral with other signatories of ACTA and would then consider further steps to take.”

However, critics of ACTA have all along argued that the reason for the original referral to the ECJ was to sidestep the European Parliament.

European Commissioner for Trade De Gucht had even hinted that the Commission’s referral was intended as a insurance policy against possible rejection by the EP: according to minutes of a Heads of Cabinet meeting in February 2012 (made public by European Digital Rights, an NGO aiming to protect freedom of expression in the internet) the European Commission was profoundly impressed by popular opposition to ACTA, and described the “strong mobilisation” against the agreement by “certain NGOs and movements active on the internet” as a “problem” for the European Commission.

EDRi reported that “the increasing opposition to ACTA on the streets and among Member States created a very real possibility that the European Parliament would vote ‘no’ to ACTA in June, effectively killing it”.

The Commission’s referral to the ECJ was interpreted as a pretext to keep alive the possibility of a revised version of ACTA, in case the Parliament went on the reject the law: as in fact happened this week.

But why is the Commission so keen to keep ACTA alive in the face of such overwhelming opposition by European citizens? Leaving aside conspiracy theories along the lines that that the EC is in collusion with major corporations to maximise profits – or, more sinister still, that it has an interest in curtailing internet freedom in a bid to exert more control over the masses – the ‘official’ reason for Europe’s insistence on an international anti-counterfeiting agreement has much more to do with safeguarding European businesses against unfair competition.

The controversy itself may have revolved mainly around privacy and personal liberty issues: but lurking in the background was concern with competition from China: namely, to protect Europe’s prime resource – its intellectual property – from being eroded by counterfeit products flooding European markets.

Bugelli admits that this was and remains a primary concern for the Commission. “Seeking protection for European creators and enterprises, and pursuing a more level playing field with other global players, was indeed one of the main aims of the proposed Agreement. That was precisely why it was important to have non-EU partners around the same table to play by the same rules.”

He also concedes that the vote against ACTA will be “a setback for the protection of our intellectual property rights around the world.

“As the Trade Commissioner De Gucht said in Parliament this week, other countries may read in this rejection as a reduced commitment by the EU to protect intellectual property rights and to enforce the rights of its industries and artists around the world.”

Bugelli adds that efforts to stave off illegal competition to the detriment of European resources will not be completely sidetracked by the defeat of ACTA in the EP.

“European competitiveness on the global stage remains on top of the agenda of the European Commission, and it will continue to seek ways to enhance it.”